Rights of superficies in general
According to the law, the right of superficies is a right in rem to own or acquire property in, on or over immovable property of another building, work or plant. The right of superficies is regulated in Sections 5:101 to 5:105 of the Dutch Civil Code.
In order to establish a right of superficies, the cooperation of both the owner of the immovable property (superficies) on which the superficies are established and the owner of the superficies (superficies) is required first and foremost. The right of superficies can take two forms, namely as an independent right to the immovable property and as a right that depends on another right of use of the immovable property, such as leasehold, rent or lease (Article 5:101 paragraph 2 of the Civil Code). The distinction is important for the legal consequences. The law does not require the deed of establishment to state in so many words whether or not a right of superficies is dependent. However, the qualification must follow from an objective interpretation of the deed of establishment. A large part of the rights and obligations are regulated in the deed of establishment.
In addition to establishment, a right of superficies can also arise through prescription. This requires an uninterrupted possession, provided that the staller is in good faith, of ten years. If there is no good faith, the right of superficies only arises after twenty years. However, there are situations in which the right of superficies cannot arise through prescription. For example, if the underlying land is rented. Moreover, it should be noted that jurisprudence has varying views on this matter.
Dependent right of superficies
A dependent right of superficies shall end at the same time as the right to which it is attached, unless a shorter period is stipulated in the deed of establishment. A mortgage cannot be established on a dependent building right.
Independent right of superficies
An independent right of superficies means that the right stands on its own. The independent right can be terminated by giving notice. Termination is possible unless otherwise stipulated in the deed of establishment. The owner may give notice of termination when the stallholder is in default of payment of the fee or is in serious breach of other obligations. Notice of termination must be given one year before the time of termination, unless there are circumstances such as those mentioned above. In addition, the end of an independent right of superficies may be heralded by the end of the duration of the right. However, the right of boarding continues when this time has expired and the stallholder has not vacated the property at that time, unless the owner makes it known that he considers the right to be terminated. Alternatively, the court may overrule the right of superficies.
Important case law concerning building rights
The Supreme Court is of the opinion that in the presence of legal ownership there should not necessarily also be economic ownership. According to the Supreme Court, it follows from the text of the Act in combination with the explanatory notes that a dwelling is at the taxpayer's disposal on the basis of (legal) ownership if it derives its right of ownership from a right of superficies. In the case of both a fee and a purchase price, the right of superficies leads to legal ownership of the superficies. In addition, the Supreme Court considers that it is not required that the interest in the value development is derived from the right of superficies itself. It is sufficient that the provision on this point is included in the deed.
Limitation period for rights of superficies
The Subdistrict Court ruled that in order for a limited right to become extinct, it must be established that the foundation exercised power in good faith for 10 years, or for 20 years, in respect of (the right to) the immovable property of another party, while it considered itself competent to do so by virtue of the (formally non-existent) limited right. The court ruled that the foundation has never become the owner of the right of superficies of the immovable property and for that reason has not acquired a right of superficies through prescription. In order for a right of superficies to arise through prescription, it is required that the foundation has been the owner of that right. If there is no transfer of possession, possession must be acquired by the acquisition of actual power, which in the case of possession of a right of superficies is tantamount to the undisturbed exercise of that right. Current practice is decisive in answering the question of whether a person, without the cooperation of the former owner, has acquired de facto power over that right in such a way that he should now be regarded as the owner. The mere fact that the foundation would have exercised actual control over the immovable property at the time does not mean that it possessed the right of building. It is not a question of whether the foundation has performed acts of ownership with respect to the immovable property, but with respect to the right of superficies.
Conclusion
The scope of the right of superficies depends very much on the deed of establishment that has been concluded. Many regulations are based on mandatory law, but often a 'as far as' or 'unless' provision is included. On this basis, the possibility is given to deviate from the law in the deed of establishment. This ensures that the civil-law effect of the building right in any situation depends on the actual agreements made by the owner with the holder of the superficies. As a main rule, the owner of the property is free to choose which permission he wants to give to the building.
The right of superficies is a so-called right in rem to own or acquire buildings, works or plants in, on or over another person's immovable property. The person with the right of superficies is therefore the owner of the barn, orchard or other property situated in, on or above the land on which he has the right of superficies. This creates a legal separation between the subsoil and what has been built or cultivated on it. This crosses the main rule that the person who owns the subsoil also owns what is standing on it.
The right of superficies can arise by means of establishment or prescription. The right of superficies is established by means of the general rules of establishment. Conditions for establishment are: power of disposition, a valid title and registration in the public registers of a notarial deed.
In addition, the building right can also arise by means of prescription. The term for so-called acquisitive prescription is ten years, provided that the 'stallholder' is in good faith and has had continuous possession. If there is no good faith, the right of superficies only arises after twenty years.
With regard to the object on which his right rests, the one owning the right to superficies has the powers necessary for the full enjoyment of that right. Nevertheless, the deed of establishment may limit or, on the contrary, extend the powers of the stall operator. When limiting the powers of the stallholder, one can think of the situation in which certain buildings located on a certain yard are excluded from the right of superficies and remain the property of the owner of the yard.
On the other hand, it is also possible to broaden the powers of the superfessor in the deed of establishment. For example, the right to draw natural fruits (such as apples) from the land on which a building right rests (e.g. a summerhouse) can be included in the deed of establishment.
The parties can determine the duration of the building lease in the deed of establishment. The right of superficies can be established for a limited number of years, but also for eternity.
The right of superficies can be terminated prematurely by the superficies. The notice period is one year and is given by means of a writ. In the deed of establishment, the authority of the stall operator to give notice of termination can be limited or excluded altogether. The owner of the land does not automatically have the power to give notice of termination. However, this power can be granted to him in the deed of establishment.
Unless stipulated otherwise in the deed of establishment, at the end of his right to superficies, the superfessor has the authority to remove buildings, works and plants which he himself or his predecessor have not been obliged to construct or which have been taken over from the owner in return for payment of the value.
If, at the time of the right of superficies, the superfessors have not exercised their "right of removal", ownership of the buildings, works or plants shall automatically pass to the owner of the immovable property to which the right was attached.
Addition
In rental practice, one sometimes chooses to establish a right of superficies on behalf of the tenant that gives him the ownership of (realized by this tenant) superficies. In the conditions of establishment of the right of superficies, provisions are then made that link the rental right and the right of superficies in a certain respect. After all, it is not the intention that the right of superficies is maintained after the end of the lease. The law offers a simple possibility to make such a link: pursuant to Article 5:101 paragraph 2 of the Dutch Civil Code, the right of superficies can be made dependent on the rent. However, the consequence of this is that the right of superficies cannot exist at all without (and therefore terminates by operation of law) the lease agreement. Such a strong connection is usually too much of a good thing. The reason for establishing a right of first refusal is usually the tenant's desire to finance his investments; a right of first refusal that cannot be taken out of the tenant's hands, however, is unsuitable collateral for financiers. Moreover, under the current Civil Code, a lease-dependent right of superficies cannot even in theory be encumbered with a mortgage. This raises the question of how a right of superficies can be established on behalf of the tenant that on the one hand does justice to the landlord's wishes (if the lease ends, the right of superficies must also come to an end) and on the other hand meets the interests of financiers (the right of superficies must be able to be taken out of the tenant's hands in the event of a foreclosure sale). In addition, the question is what - now that such a right cannot be encumbered with a mortgage - is still the added value of a purely rental-dependent right of superficies.
In the Netherlands, the owner of land also owns everything built on that land. This is called 'natrekking'. This also applies if something is installed on an existing building. Think of solar panels, a transmitter mast or a heat and cold installation. If a private individual places solar panels on his own house, this is of course no problem, because he owns the house and therefore the solar panels. Otherwise it will be if a third party wants to place something on the ground or on or in a building of a third party. To ensure that this party retains ownership of the installation, a separation can be made in the ownership by establishing a building right. An example: a party wants to install solar panels on an apartment building, but wants to ensure that the solar panels always remain his property. The occupants of the apartment building will purchase the energy generated by the solar power plant. This can be arranged by establishing a right of superficies to have and keep a solar power plant. The owner of the apartment building will not become the owner of the solar power plant. Therefore, a separation is made between the ownership of the land and what has been built on it. An additional advantage is that the party building the solar power plant can also finance it more easily. A right of mortgage can be established on an independent right of superficies. This mortgage right then only relates to the right of superficies and not to the accompanying building. The right of superficies is laid down in the superficies agreement, it can be determined that the superfessors owe a fee for having and keeping the right of superficies and it can be described what happens to the buildings at the end of the right of superficies. In this way, the building owner can obtain a removal right, so that he can remove the solar power plant at the end of the right of superficies. In addition, as a rule, an additional agreement will also be concluded between the building owner and the owner of the block of flats regarding the supply of energy. In such an agreement, attention must also be paid to the situation that the building owner is declared bankrupt, so that the supply of energy is guaranteed. In addition to the superficies' deed containing the provisions for the superficies' rights, additional easements may also be established. When establishing a building right, transfer tax may also be payable.